TMI Blog2020 (1) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid for, especially when seen in the context of the specific stand of the operational creditor that after the issue raised in the e-mail of January 16, 2014 four more consignments were supplied to the corporate debtor. Cheque stated to have been given as security - HELD THAT:- This cannot be taken to be a valid defence. In terms of section 139 of the Negotiable Instruments Act, 1881, there is a presumption that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. While this is no doubt a rebuttable presumption, the presumption stands unless the contrary is proved. The burden of proof is on the corporate debtor. The petition made by the operational creditor is complete in all respects as required by law. It clearly shows that the corporate debtor is in default of a debt due and payable, and the default is in excess of minimum amount of one lakh rupees stipulated under section 4(1) of the IBC. Therefore, the default stands established and there is no reason to deny the admission of the petition - Petition admitted - moratorium declared. - C. P. (IB) No. 749 /MB/C-IV/ 2017 - - - Dated:- 1-1-2020 - V. K. RAJA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the outstanding payment of ₹ 79,76,937 (rupees seventy nine lakhs seventy six thousand nine hundred and thirty seven only) in five instalments as follows : Rs. 1. On 15-7-2014 : 10,00,000 2. On 30-7-2014 : 15,00,000 3. On 16-8-2014 : 15,00,000 4. On 30-8-2014 : 15,00,000 5. On 15-9-2014 : 24,76,937 Totalling : 79,76,937 A copy of the said letter dated July 8, 2014 has been placed as exhibit D at page 26 to the petition. This letter is on the letterhead of the corporate debtor, and duly signed for and on behalf of the corporate debtor by its director, Mr. Gopal Rai. (c) The respondent-corporate debtor made payment of the first instalment, i. e., ₹ 10,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) In compliance with rule 5 of the Rules ibid, a demand notice dated September 25, 2017 in form 3 in terms of section 8 of the IBC was issued by the operational creditor to the corporate debtor. This demand notice has been placed on record at pages 75-78 of the rejoinder. The postal receipt has been placed at page 79 of the rejoinder. The operational creditor has stated in paragraph 8 of its rejoinder that the demand notice was returned unserved. 6. The corporate debtor has filed a reply to the petition dated March 7, 2019. It has been stated therein that the goods supplied by the operational creditor were defective and not of standard quality. The corporate debtor had raised issues of inferior quality of goods, which was also duly communicated to the petitioner vide phone calls and e-mail dated January 16, 2014. A copy of the e-mail dated January 16, 2014 has been placed on record as exhibit 1 at page 39 of the reply (paragraph 2(b) at page 34 of the reply). 7. The corporate debtor has further stated that no demand notice has been served on the corporate debtor, and therefore, the present company petition ought not to be treated as an application under section 9 of the IB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fections and let us know the challenges involved. 13. The operational creditor had replied to the said e-mail dated January 16, 2014 on January 19, 2014 (exhibit 2 at page 42 of the reply), wherein it has been stated that during the manufacturing process, many times there are problems that are faced while cutting the strip or defective portion, and thus there may be several cut rolls in one roll. 14. Since the e-mail dated January 16, 2014 specifically notes that in the last batch of carbon fibre reinforced laminates, several imperfections were found , it can only be taken that the other consignments were defect-free. Further, in the rejoinder, the operational creditor has taken a specific stand that the issue of defective quality of supplies has been raised in only one out of twenty-seven consignments, and that this issue was also resolved. Even if the issue is assumed to be unresolved, this would only cover one consignment, and there is no reason why the other consignments ought not to be paid for, especially when seen in the context of the specific stand of the operational creditor that after the issue raised in the e-mail of January 16, 2014 four more consignments were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r lessor where such property is occupied by or in possession of the corporate debtor. (c) Notwithstanding the above, during the period of moratorium,- (i) The supply of essential goods or services to the corporate debtor, if continuing, shall not be terminated or suspended or interrupted during the moratorium period ; (ii) That the provisions of sub-section (1) of section 14 of the IBC shall not apply to such transactions as may be notified by the Central Government in consultation with any sectoral regulator. (d) The moratorium shall have effect from the date of this order till the completion of the CIRP or until this Adjudicating Authority approves the resolution plan under sub-section (1) of section 31 of the IBC or passes an order for liquidation of corporate debtor under section 33 of the IBC, as the case may be. (e) Public announcement of the CIRP shall be made immediately as specified under section 13 of the IBC read with regulation 6 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. (f) Since the operational creditor has not proposed the name of any interim resolution professional (IRP) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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